A resource for updates to Currie & Rikhof, International & Transnational Criminal Law, 2d ed. (Toronto: Irwin, 2013), and a forum to discuss developments in the field.

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April 2012

26 April 2012

In an unsurprising result, former Liberian President Charles Taylor has been convicted after his trial at the Special Court for Sierra Leone (SCSL). The trial court convicted him for aiding and abetting a variety of crimes against humanity and war crimes committed during the 1991-2002 civil war in Sierra Leone (including the conscription of child soldiers, a crime for which the ICC's first accused, Lubanga, was also convicted). Notably, Taylor was acquitted of having directly perpetrated any of the crimes, and the court also found he was not party to a joint criminal enterprise (JCE).

Reaction has been swift, including a significant amount of protest in Liberia, where Taylor remains popular. Coverage here and here, and a summary of the court's findings can be found here. The official version of the judgment is to be released in the near future.

Some Liberians have criticized Taylor's conviction as a "mockery of justice." The mockery of justice would have occurred if he was not found responsible. The record is quite clear, having been established in other cases such as the US prosecution of Charles "Chuckie" Taylor Jr., where the court heard evidence that the Liberian forces in Sierra Leone were encouraged to engage in cannibalism, among other acts. Taylor is the first head of government to be convicted before an international criminal tribunal. Hopefully he will not be the last. There will, of course, be an appeal. Today, however, another chink in the armor of impunity.

03 April 2012

The Canadian federal Parliament's Standing Committee on Justice and Human Rights has just released its Report entitled The State of Organized Crime. The Committee heard from a wide range of witnesses over the course of quite a number of hearings, and makes 35 recommendations (reproduced below) for the improvement of Canada's efforts to combat organized crime.

So far as the subject matter of this blog goes, there is very little in the report to highlight. In fact, consideration of the transnational aspects of this subject matter is mostly noteworthy by its absence from the report, except in a very general way. This is despite the fact that the Committee heard from a number of witnesses who have the relevant expertise and, it would seem, did speak to the transnational issues.

There are a number of salutary proposals in the Report, including a challenge to the government to address the root causes of organized crime instead of confining its response to policing, as well as some proposed improvements to Canada's laws regarding money laundering and forfeiture of proceeds of crime (regarding which, see Chapter 7 of my book).

Two things worth mentioning here. First, there are some recommendations that could add fuel to the fire of the debate around Bill C-30 (which I blogged about last week):

RECOMMENDATION

The Committee recommends that the Government of Canada pursue legislation requiring telecommunications service providers and telecommunications device manufacturers to build the ability to intercept telecommunications into their equipment and networks.

RECOMMENDATION

The Committee recommends that the Government of Canada introduce legislation requiring telecommunications service providers and telecommunications device manufacturers to decrypt legally intercepted communications or to provide assistance to law enforcement agencies in this regard.

In the body of the report itself, the Committee suggests that these measures should be available without search warrants, but nonetheless with judicial oversight and privacy protection of some sort. This is similar to some proposals made by Professor Michael Geist, the idea being that there may be room for some streamlining of the judicial authorization process when it comes to these kinds of data-gathering, given the fluid and fast-moving nature of cybercrime generally (cybercrime being, increasingly, an activity under the "organized crime" umbrella).

Unfortunately, some of the government witnesses appear to have continued to perpetuate the fiction that police are finding it "difficult" to get information (particularly subscriber information) from ISPs during their investigations, a proposition the federal government has been arguing to support Bill C-30 but which is not consistent with the evidence on point. The Official Opposition note this in a set of dissenting remarks at the end of the Report. See also David Fraser's Privacy Law Blog on this point.

Second, there is some attention to the pressing need for effective information- and evidence-sharing among law enforcement agencies (see pp. 22-25). Unfortunately, no real separation is made between the idea of co-operation among Canadian domestic law enforcement agencies and the co-operation of Canadian officials with their counterparts in other states. I say this is "unfortunate" because some very different issues arise when you move the co-operation schema out into transnational fora. As I have argued (see Chapter 10 of my book) -- and as others, most notably Professor Kent Roach, have stressed -- information sharing with foreign law enforcement agencies can lead to serious human rights problems, depending upon the use to which the foreign authorities will put the information. There need to be rules and policies in place which address how, with whom and how much information can be shared with foreign authorities. These rules and policies need to be made available to the public and they need to be subject to civilian oversight. Maher Arar could tell you that, and in the Arar Commission Report it was addressed in great detail.

Instead, in the Report, the Committee notes that it heard testimony to the effect that "certain legislative restrictions have a negativeimpact on the ability of the police to share information with both domestic and internationallaw enforcement partners." It ascribes this point to the testimony of Inspector Robert Bazin, Officer in Charge, Border Integrity, “D” Division, Royal Canadian Mounted Police; however the link to Insp. Bazin's testimony does not work, so we are left in the dark as to what these legislative restrictions are.

In any event, the Committee clearly places its emphasis on facilitating these conduits: "What is required is a legislative scheme that is clear with respect to the sharing of criminal intelligence in order to facilitate more effective and efficient investigations of organized crime. The legislative restrictions should be removed in cases where they are not necessary for privacy or other reasons."

And that is all we get. No government communication on the issue of transnational intelligence and evidence sharing should fail to refer to the Arar Report, which points out the dangers referred to above. This is, perhaps, the most glaring problem with the Report. This is, after all, the Standing Committee on Justice *and* Human Rights, and it is disturbing to see a pressing human rights issue get such short shrift.